The Conversation spoke with University of NSW Professor of Law Julian Disney, Chair of the Australian Press Council, to discuss phone hacking, payments to police and more.

What are the Australian implications of the News of the World hacking scandal?

The UK problems may be more severe than in Australia but that doesn’t mean we can be complacent. In the year or so since I agreed to chair the Press Council I have repeatedly emphasised that our resources and performance need to improve substantially. The Council has already made some improvements and others are to be announced later this month. But the UK furore reinforces the need to go further and faster in the key directions of enhancing the Council’s independence, boosting its resources, strengthening its standards of good media practice, and enforcing those standards more effectively.

Does the Press Council approve of payments to police as a legitimate tool of journalistic inquiry?

It is difficult to imagine any circumstances in which it would be acceptable. The Council’s General Principle 5 is especially relevant here and prohibits using dishonest or unfair means to obtain information unless it is in the over-riding public interest. Of course, a criminal offence may also be involved.

Spelling out the implications of our General Principles in a particular context is the main purpose of the new Standards Project. For example, a forthcoming Specific Standard will focus on journalists or photographers using dishonest or unfair means to access a patient in a hospital or similar institution. With our new focus on a pro-active approach, this standard was developed without waiting for a particular complaint to be made to us (although we were aware of complaints being made through other avenues).

Does the News of the World scandal show that self-regulation by the media doesn’t work?

The current Australian system can’t really be described simply as self-regulation. Some statutory regulation applies already and the Council itself has significant elements of independence from the media industry. For example, independent “public members”, including the Chair and Vice-Chair, comprise almost half of the Council and more than half of its Complaints Committee. Fewer than half of the Council are nominated by publishers.

Nevertheless, the Council’s real and perceived independence must be improved. All public members need the skills and standing to be persuasive voices around the Council table. It has been argued that they should also comprise the majority of the Council. Another option is for the Complaints Committee, on which they are already the majority, to become the final arbiter on complaints rather than the full Council. Current employees in the media industry could be precluded from sitting on the Committee.

Any changes in these directions must recognise the value of media expertise and of constructive engagement by publishers and journalists in the work of the Council. A principled and practical balance has to be struck between simplistic theories of separating regulation from the industry and, on the other hand, intransigent resistance to external scrutiny of the kind which journalists rightly insist should apply to other professions. It is also essential, of course, to retain due independence from government.

In terms of maintaining that independence, does that affect how the Press Council is and should be funded?

The Council’s funding shouldn’t continue to be entirely dependent on the media industry. I was delighted when the Council agreed last year that two-thirds of the budget for our major new Standards Project could come from non-media sources, including governments. The Myer Foundation is now contributing to the project budget and other independent sources, as well as the Federal Government, have been asked for support. The way is open for funders interested in strengthening media standards to step up to the plate.

This broader range of funding is essential not only to enhance our independence but also to boost our staff resources substantially above the current level of only four people, especially by strengthening our capacity to investigate complaints and generally monitor compliance with our standards.

What would happen in Australia if a media outlet was accused of engaging in phone hacking?

The Council might decide that our investigative powers and resources are not adequate to arrive at a reliable adjudication. In that case, it should frankly acknowledge our limitations and refer the matter to the police or some other authority with the requisite powers and resources. We certainly must not give an impression that the complaint has been adequately investigated and resolved.

Unlike some overseas counterparts, the Council supplements its preliminary investigations by requiring complainants and newspapers to attend the Complaints Committee and answer questions in the presence of each other. But it is not realistic or desirable for the Council to conduct investigations and hearings with the depth and rigour of a criminal process. The risk of excessive legalism, cost and delay would prevent many people from lodging or pursuing their concerns.

Should the Press Council have greater powers to impose sanctions on media outlets?

There is a strong case for strengthening the use of our existing powers. For example, the Council is actively considering whether to specify more firmly the way in which our adjudications must be published. Other options could include issuing admonitions or censures, or requiring publication of retractions, apologies or rights of reply.

The Council does not want powers to impose more severe sanctions such as fines. They would lead inevitably to more formal and legalistic processes, often including high-level legal representation of parties. The resultant cost, delay and adversarial atmosphere would effectively preclude many people from pursuing valid complaints.